Disciplinary appeals - the importance of responding in full

MANY employers have faced the difficult task of taking employees through a disciplinary process at some point, after allegations of wrongdoing in the workplace.

Whilst following a fair investigation and process will be at the forefront of an employer's mind initially, once a decision has been reached and a sanction issued, employers sometimes fail to properly consider or respond to an employee's appeal.

It is common knowledge that an important part of any disciplinary process to give a right of appeal, however, some employers may treat it as a tick box exercise rather than an opportunity to properly reconsider the matter. This is unlikely to satisfy a tribunal that the right of appeal has been properly applied; this can place the employer in a high-risk position especially where the sanction subject to the appeal is severe. For example, dismissal or demotion sanctions, will more likely cause the employee to be dissatisfied, and as such there is already a higher risk of a tribunal claim being brought against the employer, regardless of whether the original sanction is reasonable. It is, therefore, imperative that an employer meets its obligations by responding to any appeal fairly, in full, and with careful consideration.

This has been underlined by the Court of Appeal (CA) in the case of Patel v Folkestone Nursing Home Ltd. The employee had appealed against their dismissal on a number of grounds and the employer upheld their appeal, reinstating them. Crucially, however, the appeal outcome letter failed to deal with the most serious allegation against the employee and, as a result, the employee refused to return to work instead bringing claims for wrongful and unfair dismissal in the Employment Tribunal (ET).

The ET held that the employee had been dismissed. However the Employment Appeal Tribunal, and then the CA, held that there was no actual dismissal by the employer as the action of reinstatement had the effect of allowing the contract of employment to continue as if it had not been terminated to begin with.

But that wasn't the end of the story as the CA decided that the employer's failure address, at appeal, the more serious of the allegations against the employee was likely enough to amount to a breach of the duty of trust and confidence - this, in turn, entitling the employee to resign and claim constructive dismissal. In light of this, the CA allowed written submissions from the parties in respect of allowing the appeal to continue on the basis of a constructive rather than an actual dismissal.

This case brings into close focus the emphasis that the courts put on an employer's obligation to properly deal with each stage of the disciplinary process. It would be a shame for any employer to fall at the final hurdle simply for failing to give the appeal stage due regard; especially if the overall intention is to allow the appeal and reinstate the employee.

To avoid such an outcome, practical steps for any employer to follow when handling an appeal include:

1. correctly identifying each of the grounds of appeal;

2. ensuring each ground is expressly dealt with; and

3. communicating the response clearly to the employee.

If you require guidance with any disciplinary appeals rest assured that your business will be in good hands with Wilson Browne Solicitors.